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The amendments relating to nominees forms a part of the measures being
undertaken to give effect to the Government’s commitment to implement a
simpler and more coherent social security system.
Nominees are
particularly relevant to youth allowance, age pension and disability support
pension recipients who have difficulty managing their own financial
affairs.
Currently, the law only provides for a payment nominee and
arrangements relating to correspondence are dealt with administratively.
Similarly, the current law does not clearly set out the duties and obligations
of nominees. With an ageing population the use of nominees is likely to increase
so it is considered appropriate to address these issues now.
This Bill
repeals the current nominee provisions in the social security law and the family
assistance law and inserts new Part 3A in the Social Security
(Administration) Act 1999 and new Part 8B in the A New Tax System (Family
Assistance) (Administration) Act 1999, which addresses the deficiencies in
the current law.
The provisions in the Bill distinguish between a
correspondence nominee and a payment nominee and sets out the duties of payment
nominees in relation to payments they receive.
The Bill also consolidates
within the framework of the social security law a number of administrative
practices relating to nominees.
The amendments relating to profoundly disabled children will streamline
the process to allow more people caring for certain terminally ill children to
qualify for carer payment. The need for these amendments was identified in the
Government’s response to the Review of the measure to extend carer
payment eligibility to carers of children with a profound
disability.
Sections 1 and 3 commence on Royal Assent.
Schedules 1 and 2 that
relate to nominees commence on 1 July 2003.
Schedule 3 that relates to
the definition of profoundly disabled child commences on Royal Assent.
The total costs of the amendments made by Schedules 1 and 2 of the Bill
in 2003-2004 are negligible.
The total costs of the amendments made by
Schedule 3 of the Bill to the definition of “profoundly disabled
child” in section 197 of the Social Security Act 1991 in Schedule 2
of the Bill are:
|
|
|
2002-03
$m
|
2003-04
$m
|
2004-05
$m
|
2005-06
$m
|
|
|
Total
|
1.3
|
1.3
|
1.4
|
1.4
|
This clause specifies that the short title of the Bill, when enacted,
will be the Family and Community Services Legislation Amendment (Budget
Initiatives and Other Measures) Act 2002.
This clause specifies that:
• Sections 1 to 3 and anything
in the Act not covered by the table commences on the day the Act receives the
Royal Assent;
• Schedule 1 commences on 1 July
2003;
• Schedule 2 commences on 1 July 2003;
and
• Schedule 3 commences on the day the Act receives the Royal
Assent.
This clause gives effect to the Schedules to the Bill.
Items 1 and 2 are technical amendments consequential upon the on
the changes made in the new Part 3A dealing with nominees.
Item 3
repeals the existing generic payment nominees provisions in subsections 44(3)
and (5) and substitutes a new subsection (3) that makes the section relating to
payments to a person subject to the new Part 3A that deals with
nominees.
The effect of item 4 is to repeal the existing payment
nominees provision that relates to youth allowance as a consequence of the
insertion of new Part 3A.
Item 5 inserts a new subsection 45(4)
that makes section 45 relating to the payment of youth allowance subject to the
new Part 3A that deals with nominees.
The amendments made by items 6
to 8 are consequential upon the insertion of Part 3A that deals with
nominees.
Item 9 inserts new Part 3A after Part 3.
Section 123A introduces and defines five new terms for the purposes of
this Part:
• correspondence
nominee;
• nominee;
• payment
nominee;
• principal; and
• relevant payment.
Section 123B provides for the Secretary to be able to appoint a person to
be the payment nominee of another person for the purposes of the social security
law and direct that the whole or part of the payment be paid to the payment
nominee.
Section 123C provides for the Secretary to be able to appoint a person to
be the correspondence nominee of another person for the purposes of the social
security law.
This section deals with the administrative procedures that relate to
appointment. Subsection 123D(1) provides that a person may be both the payment
nominee and the correspondence nominee of the same person. It is reasonably
common for children of an elderly person who can no longer manage their own
affairs to manage the financial affairs of their parent and to handle their
correspondence relating to their age pension. It is also common for parents of
children with a disability to manage the financial affairs of their children and
to handle their correspondence relating to disability support pension. The new
provision facilitates such arrangements.
Subsection (1) provides that if a person withdraws their consent to be a
nominee under section 123B or 123C, the Secretary must revoke the person’s
appointment as a nominee as soon as practicable.
Subsection (2) provides
that the Secretary may suspend or revoke appointments in if the Secretary gives
the nominee a notice under section 123K and the nominee informs the Department
of an event or change of circumstances or the likelihood of such an event or
change occurring and the event or change is likely affect the ability of the
nominee to act as nominee or the ability of the Secretary to give notices or the
ability of the nominee to comply.
Subsection (3) provides that the
Secretary may suspend or revoke appointments in writing if the Secretary gives
the nominee a notice under section 123K or 123L and the nominee does not comply
with the notice.
Subsection (4) provides that while the appointment is
suspended the appointment has no effect for the purposes of the social security
law.
Subsection (5) provides that the Secretary may at any time cancel a
suspension of an appointment under subsection (1).
Subsection (6)
provides that any suspension or revocation of a nominee appointment must be made
by the Secretary in writing.
Subsection (7) provides that the revocation
of an appointment has effect on and from the day specified in the
revocation.
Subsection (8) provides that subsection (2) does not apply to
a person who is a nominee because of paragraph (b) of the definition of payment
nominee in section 123A.
Subsection (1) provides that if a person has a payment nominee an amount
payable to the person under the social security law is to be paid to the payment
nominee.
Subsection (2) provides that the amount paid to the payment
nominee of a person is paid on behalf of the person and is deemed to have been
paid to the person when it is paid to the payment nominee.
Subsection (3)
provides that an amount that is to be paid to the payment nominee of a person
must be paid to the credit of a bank account and maintained by the
nominee.
Subsection (4) provides that the Secretary may direct that an
amount paid to a payment nominee may be paid to the payment nominee other than
to the credit of a bank account maintained by the nominee.
Subsection (5)
provides that subsections (3) and (4) do not apply where a person is payment
nominee by virtue of paragraph (b) of section 123A.
Proposed section 123G – Interpretation
This section
defined the term benefit recipient to mean a person
who:
• has claimed or is receiving a social security payment;
or
• has claimed or is the holder of a concession card.
Subsection (1) provides that, subject to subsection (4), any act that may
be done by a person may be done by that person’s payment nominee for the
purposes of the social security law (other than one under Division 2 or 3). This
is subject to Division 5.
Subsection (2) provides that an application or
claim that may be made under the social security law by a person may be made by
the person’s payment nominee on behalf of that person.
Subsection
(3) provides that the actions of a person’s correspondence nominee are
those of the person where they are done for the purposes of the social security
law.
Subsection (4) deals with the situation where the Secretary gives a
notice to benefit recipient because the act to be done under the notice is one
that must be done by the benefit recipient, such as attending a medical
examination, entering into a Newstart Activity Agreement or the things mentioned
in subsection 601(2) of the Social Security Act 1991. The power to give
notices to the benefit recipient is preserved by section 123Q. Subsection (4)
limits subsection (1) to the extent that an act is required to be done by the
benefit recipient.
Subsection (1) provides that any notice given by the Secretary to the
benefit recipient under the social security law may be given to that
person’s correspondence nominee.
Subsection (2) provides that the
notice must be in the same form as if it were being given to the benefit
recipient and it may be given either personally or sent by post to the
correspondence nominee.
Subsections (3) and (4) deal with the giving of
notices to both the benefit recipient and the nominee.
This section details what a correspondence nominee must do to comply with
a notice under section 123I and the consequences of the correspondence nominee
complying or failing to comply with the notice.
Subsection (1) provides that the Secretary may give a nominee a notice
requiring the nominee to inform the Department of the occurrence of an event or
a change in circumstances or if the nominee becomes aware of these as well as if
the event or circumstances is likely to affect either the nominee’s
ability to act as a nominee or the Secretary’s ability to give notices to
the nominee or the nominee’s ability to comply with notices given to the
nominee by the Secretary.
Subsection (2) is subject to subsection (3) and
deals with the requirements of notices given under subsection
(1).
Subsection (3) provides that a notice under subsection (1) is not
ineffective because it fails to inform the nominee how to give the required
information to the Department.
Subsection (4) provides that a person must
be given at least 14 days after either the day on which the event or change of
circumstances occurs or the day on which the nominee becomes aware that the
event or change of circumstances is likely to occur, to notify the Department.
This is subject to subsection (5).
Subsection (5) provides that
subsection (4) does not apply if a notice requires the nominee to inform the
department of any proposal by the principal to leave
Australia.
Subsection (6) provides that the section extends
extraterritorially.
Subsection (1) provides that the Secretary may give the payment nominee a
notice requiring the nominee to give the Department a written statement about a
matter relating to the disposal by the nominee of money paid to the nominee on
behalf of the principal under the social security law.
Subsection (2) is
subject to subsection (3) and deals with the requirements of notices under
subsection (1).
Subsection (3) provides that a notice under subsection
(1) is not ineffective because it fails to inform the nominee how to give the
required information to the Department.
Subsection (4) provides that a
person must be given at least 14 days after either the day on which the event or
change of circumstances occurs or the day on which the nominee becomes aware
that the event or change of circumstances is likely to occur, to notify the
Department.
Subsection (5) provides that the statement given in response
to a notice under subsection (1) must be in writing and in accordance with a
form approved by the Secretary.
Subsection (6) creates an offence in
relation to the nominee who refuses or fails to comply with a notice under
subsection (1). The penalty for a contravention of subsection (6) is 60 penalty
units.
Subsections (7) and (8) set out defences for the purposes of
subsection (6).
Subsection (9) provides that the offence of refusing or
failing to comply with a notice is an offence of strict liability like similar
offences in the Social Security (Administration) Act
1999.
Subsection (10) provides that the section extends
extraterritorially.
Subsection (1) provides that the principal is not guilty of an offence
under this Division for the acts or omissions of the nominee.
Proposed section 123N – Protection of nominee against criminal
liability
Subsection (1) provides that the nominee is not subject to
any criminal liability under the social security law for any act or omission of
the principal or anything done in good faith by the nominee in his or her
capacity as nominee.
Subsection (2) provides that it is subject to
section 123L.
Section 123O establishes a duty upon the payment or correspondence
nominee to act at all times in what he or she believes in good faith to be the
best interests of the principal.
This section makes it clear that the power of revocation is that
contained in subsection 33(3) of the Acts Interpretation Act
1901.
This section makes it clear that the nothing in Part 3A is intended to
limit the power of the Secretary to give notices to a benefit recipient. There
are some things under the social security law that must be done by the benefit
recipient, such as attending a medical examination.
This section provides the if the Secretary gives a notice to a benefit
recipient and the person has a correspondence nominee then the Secretary may
inform the correspondence nominee of the giving of the notice.
This provision deals with the situation where the Secretary gives a
notice to a person who has a correspondence nominee because the Secretary
requires the person to do something personally. The correspondence nominee is
given the right to attend or accompany the person if the person wishes this to
occur.
Item 10 inserts a new subsection 208(3A) to allow the
disclosure of information to the nominee.
Item 11 is a
transitional provision that provides for the continuation of existing payment
directions.
SCHEDULE 2—AMENDMENTS OF THE FAMILY ASSISTANCE LAW RELATING TO NOMINEES
Item 1 repeals subsection 23(4) as a consequence of the insertion
of new Part 8B dealing with nominees.
Item 2 repeals subsection
23(6) and inserts a new subsection 23(6) that makes the section subject to Part
4, Division 3 of Part 8B and sections 225 and 226.
Item 3 repeals
subsection 24(2) as a consequence of the insertion of new Part 8B dealing with
nominees.
Item 4 repeals subsection 24(4) and inserts a new
subsection 23(6) that makes the section subject to Part 4, Division 3 of Part 8B
and sections 225 and 226.
Item 5 repeals section 35 and
substitutes a new section 35 that deals with the payment of family tax benefit
advance as a consequence of the insertion of new Part 8B dealing with
nominees.
Item 6 makes a technical consequential amendment to
subsection 47(1).
Item 7 repeals subsections 47(2) and (4) and
substitutes a new subsection 47(2) that makes the section subject to Part 4,
Division 3 of Part 8B and sections 225 and 226.
Item 8 repeals
subsection 56(2) as a consequence of the insertion of Part 8B dealing with
nominees.
Item 9 repeals subsection 56(4) and substitutes a new
subsection 56(4) that makes the section subject to Part 4 and Division 3 of Part
8B.
Item 10 repeals subsection 56A(2) as a consequence of the
insertion of Part 8B dealing with nominees.
Item 11 repeals
subsection 56A(4) and substitutes a new subsection 56A(4) that makes the section
subject to Part 4 and Division 3 of Part 8B.
Item 12 inserts new
Part 8B that deals with nominees after Part 8A.
Section 219TA introduces and defines five new terms for the purposes of
this Part:
• correspondence
nominee;
• nominee;
• payment
nominee;
• principal; and
• relevant benefit.
Section 219TB provides for the Secretary to be able to appoint a person
to be the payment nominee of another person under the family assistance law and
direct that the whole or part of the payment be paid to the payment
nominee.
Proposed section 219TC - Appointment of correspondence
nominee
Section 219TC provides for the Secretary to be able to
appoint a person to be the correspondence nominee of another person for the
purposes of the family assistance law.
This section deals with the administrative procedures that relate to
appointment. Subsection 219TD(1) provides that a person may be both the payment
nominee and the correspondence nominee of the same person.
Subsection (1) provides that if a person withdraws their consent to be a
nominee under section 219K or 219L, the Secretary must revoke the person’s
appointment as nominee as soon as practicable.
Subsection (2) provides
the Secretary the power to suspend or cancel an appointment where the nominee
notifies an event or a change of circumstances under
paragraph 123K(1)(b).
Subsection (3) provides that the Secretary may
suspend or cancel appointments in writing if the Secretary gives the nominee a
notice under section 219TJ or 219TK and the nominee does not comply with the
notice.
Subsection (4) provides that while an appointment is suspended
the appointment has no effect for the purposes of the family assistance
law.
Subsection (5) provides that the Secretary may at any time cancel a
suspension of an appointment under subsection (2) or (3).
Subsection (6)
provides that any suspensions or cancellations of nominee appointments must be
made by the Secretary in writing.
Subsection (7) provides that the
cancellation of an appointment has effect on and from the day specified in the
cancellation.
Subsection (1) provides that if a person has a payment nominee an amount
payable to the person under the family assistance law is to be paid to the
payment nominee.
Subsection (2) provides that the amount paid to the
payment nominee of a person is paid on behalf of the person and is deemed to
have been paid to the person when it is paid to the payment
nominee.
Subsection (3) provides that an amount that is to be paid to the
payment nominee of a person must be paid to the credit of a bank account
nominated and maintained by the nominee.
Subsection (4) provides that the
Secretary may direct that an amount paid to a payment nominee may be paid to the
payment nominee other than to the credit of a bank account maintained by the
nominee.
Subsection (1) provides that any act (other than one under Division 2 or
3) that may be done by a person may be done by that person’s
correspondence nominee for the purposes of the family assistance law. Subsection
(1) is subject to subsection (4) and section 219TR.
Subsection (2)
provides that an application or claim that may be made under the family
assistance law by a person may be made by the person’s payment nominee on
behalf of that person.
Subsection (3) provides that the actions of a
person’s correspondence nominee under the section are those of the person
for the purposes of the family assistance law.
Subsection (4) provides
that subsection (1) does not extend to an act where the Secretary gives a notice
to a person who has a correspondence nominee requiring the person to do the
act.
Subsection (1) provides that any notice given by the Secretary to a
person under the family assistance law may be given to that person’s
correspondence nominee.
Subsection (2) provides that the notice must be in
the same form as if it were being given to the person and it may be given either
personally, sent by post to the correspondence nominee.
Subsections (3)
and (4) deal with the giving of notices to both the assistance recipient and the
correspondence nominee.
This section details what a correspondence nominee must do to comply with
a notice that has been given to them under section 219TI and the consequences of
the correspondence nominee complying or failing to comply with the
notice.
Subsection (1) provides that the Secretary may give a nominee of a
person, a notice requiring the nominee to inform the Department of the
occurrence of an event or a change in circumstances or if the nominee becomes
aware of these as well as if the event or circumstances is likely to affect
either the nominee’s ability to act as a nominee or the Secretary’s
ability to give notices to the nominee or the nominee’s ability to comply
with notices given to the nominee by the Secretary.
Subsection (2) is
subject to subsection (3) and deals with what form a notice under subsection (1)
should take. It must be in writing and be given personally or by post or such
other means determined by the Secretary and specify how the nominee is to give
information to the department and the period within which to do
so.
Subsection (3) provides that a notice under subsection (1) is not
ineffective because it fails to comply with paragraph (2)(c).
Subsection
(4) is subject to subsections (5) and provides that the period under paragraph
(2)(d) must not end earlier than 14 days after either the day on which the event
or change of circumstances occurs or the day on which the nominee becomes aware
that the event or change of circumstances is likely to occur.
Subsection
(5) provides that subsection (4) does not apply if a notice requires the nominee
to inform the Department of any proposal by the principal to leave
Australia.
Subsection (6) provides that the section extends
extraterritorially.
Subsection (1) provides that the Secretary may give the payment nominee a
notice requiring the nominee to give the Department a written statement about a
matter relating to the disposal by the nominee of money paid to the nominee on
behalf of the principal under the family assistance law.
Subsection (2)
is subject to subsection (3) and deals with the requirements of notices given
under subsection (1).
Subsection (3) provides that a notice under
subsection (1) is not ineffective because it fails to inform the nominee how to
give the required information to the Department.
Subsection (4) provides
that a person must be given at least 14 days after either the day on which the
event or change of circumstances occurs or the day on which the nominee becomes
aware that the event or change of circumstances is likely to occur, to notify
the Department.
Subsection (5) provides that the statement given in
response to the notice must be in writing and in accordance with a form approved
by the Secretary.
Subsection (6) creates an offence in relation to the
nominee who refuses or fails to comply with a notice under subsection (1). The
penalty for a contravention of subsection (6) is 60 penalty
units.
Subsections (7) and (8) set out defences for the purposes of
subsection (6).
Subsection (9) provides that the offence of refusing or
failing to comply with a notice is an offence of strict liability like similar
offences in the A New Tax System (Family Assistance) (Administration) Act
1999.
Subsection (10) provides that the section extends
extraterritorially.
Section 219TL provides that a person is not guilty of an offence under
this Division for the acts or omissions of the person’s correspondence
nominee.
Subsection (1) provides that the nominee is not subject to any criminal
liability under the family assistance law for any act or omission of the person
or anything done in good faith by the nominee in his or her capacity as
nominee.
Subsection (2) provides that it is subject to section
219TK.
Section 219TN establishes a duty upon the payment or correspondence
nominee to act at all times in what he or she believes in good faith to be the
best interests of the principal.
This section makes it clear that the power of revocation is that
contained in subsection 33(3) of the Acts Interpretation Act
1901.
This section makes it clear that the nothing in Part 8B is intended to
limit the power of the Secretary to give notices to a person who has a nominee.
There are some things under the social security law that must be done by the
benefit recipient, such as attending a medical examination.
This section provides the if the Secretary gives a notice to a person who
has a correspondence nominee then the Secretary may inform the correspondence
nominee of the giving of the notice.
This provision deals with the situation where the Secretary gives a
notice to a person who has a correspondence nominee because the Secretary
requires the person to do something personally. The correspondence nominee is
given the right to attend or accompany the person if the person wishes this to
occur.
Item 13 inserts a new subsection 168(4) to allow the
disclosure of information to a correspondence nominee.
Item 14 is
a transitional provision that provides for the continuation of existing payment
directions.
Item 1 inserts a reference to the new subsection 197(2A) into the
definition of “profoundly disabled child” in subsection 197(1). As
a result, if a child satisfies the new subsection 197(2A), the definition of
“profoundly disabled child” will be met, and the existing criteria
in subsection 197(2) will not need to be considered in that case.
Item
2 inserts a condition into subparagraph 197(2)(c)(vi) which requires a
medical practitioner to certify in writing that a child has a terminal condition
for which palliative care has replaced active treatment. This will give effect
to current practice and is consistent with the new subsection 197(2A) (see
item 10).
Item 3 inserts a new subsection 197(2A) into the
definition of “profoundly disabled child” in subsection
197(2).
Where a carer claims carer payment in respect of a disabled child
(or children) for whom they provide care, the child must satisfy the definition
of “profoundly disabled child” in subsection 197(2) of the
Social Security Act. Currently, the definition of “profoundly disabled
child” in subsection 197(2) requires that the child must satisfy the
criteria in each of paragraphs 197(2)(a), 197(2)(b) and 197(2)(c),
including meeting at least three of the seven criteria in
paragraph 197(2)(c). One of these criteria, in subparagraph 197(2)(c)(vi)
provides that in the case of a child with a terminal condition, a medical
practitioner must have certified that palliative care has replaced active
treatment for that child. Concerns have been raised that this requirement may
unfairly exclude terminally ill children who continue to receive active
treatment until their death. The process of establishing an additional two
criteria under paragraph 197(2)(c), after establishing that the terminally
ill child has satisfied subparagraph 197(2)(c)(vi), may also be considered
unduly intrusive and traumatic for the child and their family.
New
subsection 197(2A) is intended to address these concerns. New
subsection 197(2A) introduces a separate requirement with the effect that a
child will be a “profoundly disabled child” if a medical
practitioner has certified, in writing, that the child is in the advanced phase
of a terminal condition and has a life expectancy of weeks or months, or is
unlikely to live for a period substantially greater than 12 months. The child
must also require continuous personal care for the remainder of their life
because of their terminal condition.